APPEAL FROM OHIO CIRCUIT COURT HONORABLE THOMAS O. CASTLEN,
SPECIAL JUDGE NO. 14-CR-00130
COUNSEL FOR APPELLANT: Julia Karol Pearson Department of
COUNSEL FOR APPELLEE: Andy Beshear Attorney General of
Kentucky Micah Brandon Roberts Assistant Attorney General
County jury found Ronnie Leach guilty of six counts of Sexual
Abuse in the First Degree, victim under 12; one count of
Sexual Abuse in the First Degree; and four counts of Sodomy
in the First Degree, victim under 12. He was sentenced to
life in prison. This appeal followed as a matter of right.
Having reviewed the arguments of the parties, we affirm the
judgment of the Ohio Circuit Court.
2014, Misty S. reported to police that Ronnie Leach had
sexually assaulted her from approximately 1985 to 1988. At
that time, Leach and Misty S.'s aunt, Janet Welch, were
married. These assaults occurred over a period of years, when
numerous members of the family were gathered at Leach's
home. She disclosed that Leach kissed her and fondled her
breasts. He digitally penetrated her on a number of
occasions. He forced her to touch his penis. He performed
oral sex on her, and he forced her to perform oral sex on
him. These incidents occurred both outside of Leach's
house, in the woods at the back of his property, and also
inside of his house, in a bedroom and a laundry room. When
they would occur in the woods at the back of Leach's
property, they occurred while playing a game called
"taxi." During the course of this game, various
people would pile into an old car and drive it around the
property. The driver would make various stops around the
property, dropping off different combinations of people,
returning a few minutes later to pick them back up. Leach
would sexually assault Misty S. when the two of them were
dropped off alone, while waiting for the "taxi" to
return to pick them up. Misty S. did not report this abuse
until 2014, when she heard that Leach's stepdaughter,
April T., had also accused him of sexually abusing
her. Additional facts will be developed as needed in the
analysis of the legal issues in this case.
argues several grounds for relief: (1) the trial court erred
when it allowed the government to present KRE 404(b) evidence;
(2) the trial court erred when it did not allow the defense
to present KRE 412 evidence; and (3) the trial court erred
when it allowed Facebook messages into evidence when they
were not properly authenticated. We will address each of
these contentions in turn.
Standard of Review
standard of review on evidentiary issues is abuse of
discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95
(Ky. 2007) and Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999). "The test for abuse of discretion
is whether the trial judge's decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal
principles." Goodyear Tire & Rubber Co. v.
Thompson, 11 S.W.3d 575, 581 (Ky. 2000), Simpson v.
Commonwealth, 889 S.W.2d 781, 783 (Ky. 1994),
Woodard v. Commonwealth, 147 S.W.3d 63 (Ky. 2004).
All of the issues on appeal in the present case are
evidentiary issues, and therefore will be reviewed using an
abuse of discretion standard.
trial court did not err in admitting KRE 404(b) evidence.
404(b) in general
404(b) provides that evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in
order to show action in conformity therewith. It may be
admissible if offered for some other purpose. Because the
degree of the potential prejudice associated with evidence of
this nature is significantly higher, exceptions allowing
evidence of collateral criminal acts must be strictly
construed. As a result, KRE 404(b) is exclusionary in nature.
Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky.
1994). The provision offers no easy formula for resolution of
issues that are inherently difficult and that require a very
careful balancing of competing interests. As Professor
Lawson states, "With no black-letter rules, bright
lines, or shortcuts to guide the users of 404(b), the need
for careful analysis and reasoned judgment is absolutely
essential." The admissibility of KRE 404(b) evidence
is within the discretion of the trial court. Clark,
223 S.W.3d at 96.
order to determine if other bad acts evidence is admissible,
the trial court should use a three-prong test: (1) Is the
evidence relevant? (2) Does it have probative value? (3) Is
its probative value substantially outweighed by its
prejudicial effect? Purcell v. Commonwealth, 149
S.W.3d 382, 399-400 (Ky. 2004). The first prong of the test
is whether the proffered evidence is relevant for a purpose
other than criminal disposition. KRE 404(b)(1) provides a
list of other acceptable uses of "other bad acts"
evidence. This list, however, is not exhaustive but
illustrative. Tamme v. Commonwealth, 973 S.W.2d 13,
29 (Ky. 1998). In reviewing relevance, courts must determine
that the "other bad acts" evidence is offered to
prove material facts that are actually in dispute.
determining relevancy, the trial court must determine if the
evidence of the uncharged crime is sufficiently probative of
its commission by the accused to warrant its introduction
into evidence. It is sufficiently probative if the trial
judge believes "the jury could reasonably infer that the
prior bad acts occurred and that [the defendant] committed
such acts." Parker v. Commonwealth, 952 S.W.2d
209, 214 (Ky. 1997).
after determining relevancy and probativeness, the trial
court must weigh the prejudicial nature of the "other
bad acts" evidence versus its probative value. Only if
the potential for undue prejudice substantially outweighs the
probative value of the evidence must it be excluded.
"Prejudice means that evidence produces an emotional
response that inflames the passions of the triers of fact or
is used for an improper purpose." This goes beyond
evidence that is merely detrimental to a party's case.
The trial courts have great discretion in weighing prejudice
versus probativeness, but do not have discretion to fail to
weigh these factors.
trial court did not err in allowing the testimony of Tracy
Commonwealth filed notice under KRE 404(c) of its intention
to introduce other bad acts evidence regarding Leach's
sexual assault of Tracy C. as modus operandi. Tracy C.
testified that in 1987, when she was 11 years old, Leach
sexually assaulted her by kissing her, touching her breasts,
and trying to get in her pants. She could not remember if he
had actually touched her vagina. She and Leach were second
cousins by marriage - Leach was married to her mother's
cousin. Leach sexually assaulted her when she was at his
house with various other members of the family. She testified
that the incident occurred while they were playing a game of
hide and seek on four-wheelers in the woods at the back of
his property. She was riding on a four-wheeler with him,
hiding from the people on the other four-wheeler when he
assaulted her. She said he first kissed her and then touched
her breasts. He also touched inside of her pants. Shortly
thereafter, she disclosed these allegations and was not alone
with Leach again. Leach pled guilty to assault in the fourth
degree for this incident.
first question in analyzing the admissibility of the Tracy C.
allegations is whether they are relevant for a purpose other
than to prove the criminal disposition of the accused. As
stated before, the list of exceptions in KRE 404(b)(1) is not
exhaustive but illustrative. Tamme, 973 S.W.2d at
29. Prior bad acts may be admitted to show un-enumerated
exceptions such as common scheme or plan or modus operandi.
English, 993 S.W.2d at 943-45.
rule for use of a prior crime to establish intent and
knowledge by modus operandi has traditionally been stated as:
"In order to prove the elements of a subsequent offense
by evidence of modus operandi, the facts surrounding the
prior misconduct must be so strikingly similar to the charged
offense as to create a reasonable probability that (1) the
acts were committed by the same person, and/or (2) the acts
were accompanied by the same mens rea. If not, the
evidence of prior misconduct proves only a criminal
disposition and is inadmissible." Id. at 945.
"[A]s a prerequisite to the admissibility of prior bad
acts evidence, we now require the proponent of the evidence
to 'demonstrate that there is a factual commonality
between the prior bad act and the charged conduct that is
simultaneously similar and so peculiar or distinct that there
is a reasonable probability that the two crimes were
committed by the same individual." Clark, 223
S.W.3d at 97 (citing Commonwealth v. Buford, 197
S.W.3d 66, 71 (Ky. 2006)). "Although it is not required
that the facts be identical in all respects, 'evidence of
other acts of sexual deviance ... must be so similar to the
crime on trial as to constitute a so-called signature
crime."' Dickerson v. Commonwealth, 174
S.W.3d 451, 469 (Ky. 2005) (quoting Rearick v.
Commonwealth,858 S.W.2d 185, 187 (Ky.1993)). This Court
has further stated, ...